Date: 20070704
Docket: T-1780-06
Citation: 2007 FC 697
Vancouver,
British Columbia, July 4, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
DR.
MOHAMMED FARROKHYAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
appeal under subsection 14(5) of the Citizenship Act, R.S.C. 1985, c.
C-29 (the Act) and section 21 of the Federal Courts Act, R.S.C. 1985, c.
F-7 from the decision of a Citizenship Judge, dated September 8, 2006, wherein
she denied the applicant's application for citizenship on the basis that he
failed to establish residency pursuant to paragraph 5(1)(c) of the Act.
[2]
Dr.
Mohammed Farrokhyar (the applicant) is a citizen of Iran, born in
1949. He
was landed as a permanent resident of Canada on April 17,
2002, submitted an application for citizenship on October 11, 2005, and
attended a citizenship test on January 17, 2006. On the application form, he
indicated that he was outside of Canada for a total of 136 days
in the relevant period, for the purpose of visiting his infirm mother in Iran.
[3]
At
the time of the hearing, the applicant was over 55 years. Thus, the only issue
to be decided was whether the applicant had met the residency requirement of
1095 days in Canada as specified in
the Citizenship Act.
[4]
In
her decision, the Judge noted that the applicant provided only his current
passport, covering only six weeks of the relevant period under consideration,
and provided no concrete explanation of the whereabouts of his expired
passport. In lieu of the missing passport, the applicant submitted a variety of
other documents in support of his application. After reviewing the applicant's
file, the Judge concluded that there was insufficient evidence to prove his
physical presence in Canada during the relevant period. She consequently
denied his application for citizenship, not being convinced that he “has 1095
days in Canada as required by
the Citizenship Act.”
[5]
The
applicant’s main argument is that on January 17, 2006, he showed an
officer of Citizenship and Immigration Canada (the CIC officer) his current and
expired Iranian passports, the latter containing date stamps showing entry and
exit from Iran, corresponding to the entry and exit dates to Canada stated in
his application. He alleges that this officer informed him that he did not need
to keep his expired passport, and that he subsequently destroyed it.
Analysis
[6]
It
is well established that correctness is the appropriate standard of review for pure
questions of law. Thus, this Court must first determine whether the Citizenship
Judge selected the correct legal test in making the contested residency
determination.
[7]
The
remainder of the decision, involving the application of facts to
the law of residency, is clearly a matter of mixed fact and law. I also note
that while there
is no privative clause, citizenship judges acquire a certain expertise in
residency cases such as the present one (Farshchi v. Canada
(Minister of Citizenship and Immigration),
2007 FC 487, [2007] F.C.J. No. 674
(QL) at para. 8). As I previously stated in Canada
(M.C.I.) v. Fu, [2004]
F.C.J. No. 88 (QL), at paragraph 7, I am convinced that a pragmatic
and functional analysis reveals that the appropriate standard of review is reasonableness
simpliciter. In arriving at this conclusion, I also rely on considerable
jurisprudence of this Court (for example, see: Farshchi, above; Tulupnikov v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1439, [2006] F.C.J.
No. 1807 (QL) at para. 11; Tshimanga v. Canada (Minister of Citizenship and
Immigration), 2005 FC
1579, [2005]
F.C.J. No. 1940 (QL)).
[8]
The
legal criteria for citizenship are set out in subsection 5(1) of the Act (see
annex for the relevant statutory provision). Among other things, it requires an
applicant to have accumulated three years of residence in Canada during the
previous four years. Though the term "residence" is undefined in the
Act itself, it has been interpreted in various ways by this Court (Canada (Minister of
Citizenship and Immigration) v. Nandre, 2003 FCT 650, [2003]
F.C.J. No. 841 (QL) at para. 6).
[9]
This
Court’s interpretation of "residence" can be grouped into three
categories. The first views it as actual, physical presence in Canada for a total of
three years, calculated on the basis of a strict counting of days (Pourghasemi
(Re), [1993]
F.C.J. No. 232 (QL) (T.D.)). A less stringent reading of the
residence requirement recognizes that a person can be resident in Canada, even
while temporarily absent, so long as he or she maintains a strong attachment to
Canada (Antonios E. Papadogiorgakis (Re), [1978] 2
F.C. 208 (T.D.). A third interpretation, similar to the second,
defines residence as the place where one "regularly, normally or
customarily lives" or has "centralized his or her mode of
existence" (Koo (Re), [1993] 1
F.C. 286 (T.D.) at para. 10).
[10]
I
essentially agree with Justice James O’Reilly in Nandre, above, at
paragraph 11 that the first test is a test of physical presence, while the
other two tests involve a more qualitative assessment:
Clearly, the Act can be interpreted two ways, one requiring
physical presence in Canada for three years out of four, and another requiring
less than that so long as the applicant's connection to Canada is strong. The first is a physical test
and the second is a qualitative test.
[11]
It
has also been recognized that any of these three tests may be applied by
a Citizenship Judge in making a citizenship determination (Lam v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 410 (T.D.) (QL)). For instance, in Hsu v. Canada
(Minister of Citizenship and Immigration), 2001 FCT
579, [2001] F.C.J.
No. 862 (QL), Justice Elizabeth Heneghan at paragraph 4 concludes
that any of the three tests may be applied:
The case law on citizenship appeals has clearly established
that there are three legal tests which are available to determine whether an applicant
has established residence within the requirements of the Citizenship Act (...)
a Citizenship Judge may adopt either the strict count of days, consideration of
the quality of residence or, analysis of the centralization of an applicant's
mode of existence in this country.
[citations omitted]
[12]
While a
Citizenship Judge may choose to rely on any one of the three tests, it is not
open to him or her to "blend" the tests (Tulupnikov, above,
at para. 16).
[13]
The
applicant submits that the Judge erred in failing to identify which of the
three tests she relied on and further, in blending the “physical presence” test
with elements of the other two tests. I disagree.
[14]
In
my view, it is clear that the Citizenship Judge correctly applied the “physical
presence” test: she makes several express references to the “1095 day residency
requirement”; focuses her analysis of the evidence on whether or not it
established the applicant’s presence “in” Canada, during the relevant period
and also considers the number of days he was “out” of the country. These
assessments were clearly made in view of calculating the total number of days
that the applicant could demonstrably be proven to have been “in” Canada. Following
her line of inquiry, it is evident that the Judge’s assessment was confined to
a quantitative analysis.
[15]
Given
the centrality of proving physical presence in Canada, the Judge
placed significant emphasis on the missing passport, and focused her review of the
documentation submitted by the applicant solely on evidence that he was present
in Canada during the
relevant period. Reviewing the Judge’s decision, it is equally obvious
to me that she equates “physical presence” in Canada with “residence” in Canada throughout her
decision. I find no qualitative analysis in her decision which suggests to me
that she blended the various tests. I am satisfied that she correctly selected and
applied the quantitative, “physical presence” test in the present matter.
[16]
The
applicant further submits that the Judge erred by ignoring evidence,
failing to make an express finding on how much time he had actually spent in
Canada and, in drawing a negative inference from his failure to produce his
expired passport.
[17]
In
this matter, the onus was on the applicant to provide sufficient evidence to
demonstrate that he met residency requirements of the Act (Rizvi v. Canada
(Minister of Citizenship and Immigration),
2005
FC 1641, [2005]
F.C.J. No. 2029 (QL) at para. 21). Therefore, according to the “physical
presence” test he was required to demonstrate at least 1095 days in Canada in the relevant
period, failing which, his application would be rejected.
[18]
In
the present case, the Judge was not able to confirm the applicant’s assertions
regarding the number of days he was present in Canada, given the
inadequacy of his evidence. Consequently, she could not logically make a
determination of the exact number of days he spent in Canada, and cannot be
faulted for her failure to do so.
[19]
The
applicant alleges that the “Grant Checklist for Officers” dated February 2,
2006 (Grant Checklist) confirms his allegation that he had shown his expired
passport (corroborating his version of dates) to a CIC officer on January 17,
2006. This evidence was ignored by the Judge. Further, he alleges that he
destroyed his expired passport, in reliance on the officer’s advice that it
would not be necessary to his application. In the circumstances, the Judge was
not entitled to draw a negative inference from his failure to produce his
expired passport, covering most of the period relevant to his residency
application.
[20]
First,
I find that the applicant’s allegation regarding the officer’s advice is
unsupported by the evidence:
- while there is a
handwritten reference “had old passport @ exam” in the “Residency
Questions Form Notes” there is no indication that the date stamps in the
missing expired passport corresponded to the applicant’s version of dates
in his citizenship application form;
- the Judge’s notation
of February 10, 2006, does not corroborate, but rather conflicts with the applicant’s
version of events, as it only states “hearing not necessary if docs
okay”, it does not suggest that all necessary documents actually were
shown;
- there is no record
of the CIC officer advising the applicant that the expired passport would
no longer be necessary.
[21]
I
also find it significant that subsequent letters to the applicant clearly
and specifically requested all passports (current and expired).
[22]
In
my view, the applicant has not demonstrated, on a balance of probabilities,
that he even raised the issue of his reliance on the officer’s advice with the
Judge. She stated in her reasons that when she queried the applicant about his
previous passport, he stated that he no longer had his passport. He could not
provide a concrete explanation of his whereabouts. Nowhere is it mentioned that
he destroyed the passport on advice of the Citizenship Officer.
[23]
The
Judge was entitled to draw a negative inference from the applicant’s failure to
produce his expired passport, which would have been pivotal to supporting his
residency application. I agree with my colleague Justice Eleanor Dawson in Bains v. Canada (Minister of
Citizenship and Immigration), [2001] 1 F.C. 284, [2000]
F.C.J. No. 1264 (T.D.) (QL) at paragraph 38 that:
Where a party fails to bring before a tribunal evidence
which is within the party's ability to adduce, an inference may be drawn that
the evidence not adduced would have been unfavourable to the party.
[citations omitted]
[24]
After
reviewing the evidence and the Judge’s reasons for her decision, I am satisfied
that the judge correctly applied the law, considered and weighed all of the
evidence and that her decision is reasonable.
[25]
For
these reasons, this application for judicial review is dismissed.
JUDGMENT
The
application for judicial review is dismissed.
"Danièle
Tremblay-Lamer"
ANNEX A
Citizenship Act, R.S.C. 1985,
c. C-29
5.
(1) The Minister shall grant citizenship to any person who
(...)
(c) is a permanent resident within the meaning of
subsection 2(1) of the Immigration and Refugee Protection Act, and has,
within the four years immediately preceding the date of his or her application,
accumulated at least three years of residence in Canada calculated in the
following manner:
(i)
for every day during which the person was resident in Canada
before his lawful admission to Canada for permanent residence the person shall
be deemed to have accumulated one-half of a day of residence, and
(ii)
for every day during which the person was resident in Canada
after his lawful admission to Canada for permanent residence the person shall
be deemed to have accumulated one day of residence;
* *
5.
Le ministre attribue la citoyenneté à
toute personne qui, à la fois :
[...]
c) est un résident permanent au sens du
paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés
et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au
Canada pendant au moins trois ans en tout, la durée de sa résidence étant
calculée de la manière suivante :
(i)
un demi-jour pour chaque jour de
résidence au Canada avant son admission à titre de résident permanent,
(ii)
un jour pour chaque jour de résidence au
Canada après son admission à titre de résident permanent;
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